High Court Brexit judgment: do all roads lead to Luxembourg?

Albert Sanchez Graellsbalanced-scale

This is a lightly edited version of a post that first appeared on the How to Crack a Nut blog. 

The High Court has now issued its Judgment in the dispute about the UK Parliament’s necessary approval of a Brexit notification–see R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). It has ruled that such Parliamentary approval is indeed required as a matter of UK constitutional and public law. The Government has already announced that it will appeal this decision to the UK Supreme Court (UKSC). The implications of such an appeal are important and need to be carefully considered. One such possible consequence is that the appeal (indirectly) brings the case to the docket of the  Court of Justice of the European Union (CJEU).

In my view, an appeal of the High Court’s Judgment before the UKSC will indeed trigger a legal requirement under EU law for the UKSC to send a reference for a preliminary ruling to the CJEU. I have rehearsed most of my arguments on twitter earlier (see here and here) and this posts brings them together.

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The remarkable Government case in the Art 50 litigation

Prof. Piet Eeckhoutpiet-eeckhout

[This piece was originally posted on the London-Brussels One-Way or Return blog and is re-posted here with kind permission.]

It is now about a week since the hearings concluded in the litigation, before the High Court, on whether the UK Government can trigger Art 50 TEU, or whether instead an Act of Parliament is required. The transcript of the hearing makes for fascinating reading. We will have to see what the judges decide, but I cannot refrain from making the point that the Government’s case is weak. Government lawyers are of course confined in what they can argue, and what not, by what their client, i.e. politics, wants. It seems like the client has not dealt them a good hand. For the Government’s case is built around a set of propositions which are in huge tension with one another. They are:

  • The 2015 Referendum Act, which organised the referendum, did not confer on the Government the power to trigger Art 50. At most, it did not disturb a pre-existing power (the Royal Prerogative).
  • The Art 50 notification cannot be revoked. In the words of Lord Pannick QC, once the bullet has left the gun it will definitely hit the target: exit after 2 years, or at such time as the withdrawal agreement enters into force.
  • The Government can make treaties and withdraw from them. But for there to be effect in domestic law of either the making a treaty, or withdrawing from it, Parliament must be involved. This last proposition is confirmed in the following, fascinating exchange.

“THE LORD CHIEF JUSTICE: I think, sorry, if I understood my Lord’s question, you accept that if the government wanted to amend the treaties or withdraw from them so that effect was given to withdrawal in domestic law, there would have to be an Act of Parliament.


THE LORD CHIEF JUSTICE: Whether it is amending or withdrawing, it doesn’t make any difference.


THE LORD CHIEF JUSTICE: I think that was the point. It is the effectiveness in domestic law. There is no difference between amending and withdrawing, you have to have a statute?

THE ATTORNEY-GENERAL: Yes, in order for there to be an effect in domestic law we accept that Parliament’s involvement would be necessary.”

At the end of this exchange the Attorney-General confirms that Parliament’s involvement would be necessary to give domestic effect to Brexit. In other words, the Government could negotiate a withdrawal agreement, but such an agreement could take effect in UK law (much like the conclusion of a new treaty) only if Parliament legislated to such effect. But this is contradicted by proposition (2). That proposition accepts that, once the trigger has been pulled, withdrawal is outside the Government’s control. It will happen, whether the Parliament legislates or not. Crucially, this includes the effect in domestic law. The UK cannot, in its domestic law, keep all extinguished EU membership rights and obligations alive. That is so, quite simply, because at least some of those rights and obligations require membership, and the cooperation of the EU institutions and other Member States. Just one example: UK citizens will no longer be able to vote for the European Parliament, after withdrawal, and it is wholly irrelevant whether the UK Parliament leaves such a right on its statute book or not.

In the Government’s case withdrawal is therefore completely different from the law and practice of negotiating and approving new EU Treaties (or amendments to them) – contrary to what it claims. That law and practice is such that a new Treaty cannot enter into force unless it has been ratified by each member State in accordance with its constitutional requirements (i.e. approved by its parliament): see Art 48 TEU (there is a simplified revision procedure, but even that allows national parliaments to block). The logic is that the EU does not finally agree new rights and obligations until all national parliaments have approved them, and incorporated them into domestic law. So the logic of the prerogative not interfering with domestic legislation is fully respected for the negotiation of new treaties. But for withdrawal the Attorney General effectively argues the reverse: the UK Government can decide on withdrawal, including its inescapable domestic effect, and it doesn’t need Parliament’s approval.

Proposition (1) is relevant because it means that the Government is not arguing that the 2015 Referendum Act conferred a power on it to give effect to a negative referendum result, by triggering Art 50. So Parliament never authorised the triggering, and it cannot, once the bullet has left, undo withdrawal, either at the international plane or at the domestic level.

I cannot see how these three propositions could be reconciled. The most remarkable one, from the perspective of the Government’s case, is the second. If the Government argued that the Brexit bullet can be pulled back to the gun – in other words that the UK Government could always revoke the notification – there would be a much stronger case for the exercise of the prerogative, as many have noted. Parliament could then, at any stage of the negotiations, force the Government to withdraw from withdrawal. But for political reasons the Government doesn’t argue this. The big question looming over the litigation is whether the courts can simply assume that the Art 50 notification is irrevocable, when that point is so critical.

Arguments in the referendum challenge now available

Rosalind English

This post originally appeared on the UK Human Rights Blog, and is reproduced here with permission and thanks.

The imminent  litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.

A quick reminder of what this is all about:

In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.

Here is the  skeleton argument from one of the groups supporting that case (People’s Challenge), and here are the Government defendants’ grounds of resistance

Prerogative Power

People’s Challenge

The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.

This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament.  This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.

Because parliament brought us into the UK, only parliament can authorise a decision to leave.

Since the prerogative forms part of the common law,  the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.


Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.

The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.

The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.

Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control. Continue reading

The TTIP Negotiations Innovations: On Legal Reasons for Cheer

Elaine FaheyDr Elaine Fahey

By now, the Transatlantic Trade and Investment (TTIP) negotiations have undergone a marathon 14 rounds of negotiations after 36 months of talks, despite Brexit and the tumultuous US presidential elections standing in the back drop. The political mood on either side of the Atlantic is still challenging to say the least. And after EU-Canada Comprehensive Economic Trade Agreement (CETA) being proposed for recently as a mixed agreement meaning that many national parliaments will vote on it (not being an exclusive EU only agreement as anticipated), the legal context of free trade with Europe just got trickier.

The TTIP negotiations have generated fears about the transfer of authority to a new living entity as a form of global governance. Yet by opting for public institutions and institutionalisation within TTIP, there is a shift towards transparency and the ‘governability’ of global governance. Even if it fails – and there is a reasonable chance that it may not survive the US elections – there are a whole host of positives to be found within the TTIP negotiations. They can be viewed as innovative attempts to right the wrongs of global governance. They may well inspire future developments and are worthy of a brief analysis.

This post focusses upon the latest developments as to TTIP’s institutions in the latest texts released in mid-July.

On the institutional side of things, the EU’s most recent proposal of 14 July 2016 has undergone some considerable changes to appease European critics. The latest TTIP EU-proposed text still features a Joint Committee, comprised of the US Trade Representative and an EU Commission at the apex of TTIPS’s Regulatory Cooperation. The Committee would possess considerable supervisory and legally salient interpretive powers about TTIP’s proposed 30 chapters. But is more executive than supranational in nature and this matters to the US. The executive dominance of the EU’s proposed Institutional chapter as of July 2016  is apparent (Article X. 2) – because it would provide for powers to supervise and guide activities, adopt rules, adopt interpretations about the agreement and act subject to transparency and openness principles- between levels of Government essentially. The Joint Committee would principally work with Specialised Committees (e.g. market access, services …) and Working Groups but can be perceived as a great empowerment of the European Commission, arguably moving far beyond its institutional and constitutional functions.

However, it is importantly now heavily ‘tempered’ by a number of other bodies, actors and entities that align with more European than American ideals.  Above all, binding duties of cooperation and participation along wide transparency and equal access are ‘latecomers’ to the negotiations – and heavily Americanised ideas of Administrative law (e.g. ‘notice and comment’). They are important in so far as they mitigate critique of earlier drafts as to closed-decision-making practices. Thus firstly, the Joint Committee is ‘tempered’ by a Regulators Forum which would discuss regulatory cooperation between regulators, holding public sessions. The Transatlantic Legislators Dialogue (TLD) next envisaged within the new text would be comprised of EU and US parliamentarians and has already been part of several decades of EU-US relations. Nonetheless, although lacking any significant powers, as has always been the case with the TLD, it could further foster the parliamentary dimension of cooperation. In the text, the Civil Society forum would also be provided for to ensure a balance number of interests is displayed, along with a Domestic Advisory Body independent representatives of civil society, whose participation is to be facilitated. Although a lot of functional overlap is apparent from this version of the text, it is an important state of affairs. For example, ironically, the harshest criticism of the latest draft of institutional set up is that it contains too much participation or too many bodies and actors – and this criticism comes directly from the TTIP’s institutionalised Advisory Body, itself supposed to represent civil society. Previous version of the text failed to provide adequate assurances concerning the place of parliamentary sovereignty and civil society. And so on balance, on can see its virtues emerging as a broadly open and truly participatory idea of transnational cooperation with considerable control and input given to elected representatives. Continue reading

INIS Free ?

Aidan O’Neill

In his poem The Second Coming written in 1919 at a time of political and social ferment across Europe and an earlier constitutional breakdown within the United Kingdom, WB Yeats (that great Anglo-Irishman, a descendant and representative of “no petty people”) wrote the following lines:

… Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.

Surely some revelation is at hand ….

Against that apocalyptic vision, it is of some interest to note a recent op-ed piece in the Irish Times, in which the Irish writer Fintan O’Toole has made the intriguing suggestion that one possible political response to the further break-down of our constitutional order which the Brexit vote heralds, might be for a complete re-configuration of the nations within the Anglo Celtic Archipelago/Atlantic Isles.  He suggests that Scotland and Northern Ireland might leave (and so dissolve) the United Kingdom, and join Ireland in some form of, a yet to be worked out, union.

Historic precedent for a Scots-Irish union ?

It is sometimes said to be a characteristic of the Scots and Irish that (like the Bourbons) that they have learned nothing and forgotten nothing.   Their role in a Tolkien saga might be that of “The Grudge Bearers”.

In that spirit, and taking the approach of la longue durée to Fintan O’Toole’s suggestion, we might find some historic precedent for setting up a Scottish-Irish Union (sans et contre l’Angleterre) in the campaign of Edward Bruce, younger brother of and then heir to Robert Bruce, who in the year after his brother’s 1314 victory at Bannockburn, sailed to Ireland from Scotland with a sizeable fighting force and there allied with native Irish fighting against Anglo-Norman magnates owing fealty to the English crown, and had himself proclaimed High King of Ireland.

This is attested to in a remarkable document of 1317 which the native Irish princes (led by Donal O’Neill, king of Cenel Eoghain or Tyrone) addressed to the Avignon Pope John XXII through two of his papal nuncios who were then in England attempting to broker a post-Bannockburn peace between Edward II of England and Robert Bruce, King of Scots.   This Remonstrance notes in part as follows:

“[O]n account of the injustice of the kings of England and their wicked ministers and the constant treachery of the English of mixed race, who, by the ordinance of the Roman curia, were bound to rule our nation with justice and moderation and have set themselves wickedly to destroy it; and in order to shake off the hard and intolerable yoke of their slavery and to recover our native liberty, which for a time through them we lost, we are compelled to wage deadly war with them, aforesaid, preferring under stress of necessity to put ourselves like men to the trial of war in defence of our right, rather than to bear like women their atrocious outrages.

And that we may be able to attain our purpose more speedily and fitly in this respect, we call to our help and assistance Edward Bruce, illustrious earl of Carrick, brother of Robert by the grace of God most illustrious king of the Scots, who is sprung from our noblest ancestors.

And as it is free to anyone to renounce his right and transfer it to another, all the right which is publicly known to pertain to us in the said kingdom as its true heirs, we have given and granted to him by our letters patent, and in order that he may do therein judgment and justice and equity which through default of the prince Edward II the King of England have utterly failed therein, we have unanimously established and set Edward Bruce up as our king and lord in our kingdom aforesaid, for in our judgment and the common judgment of men he is pious and prudent, humble and chaste, exceedingly temperate, in all things sedate and moderate, and possessing power (God on high be praised) to snatch us mightily from the house of bondage with the help of God and our own justice, and very willing to render to everyone what is due to him of right, and above all is ready to restore entirely to the Church in Ireland the possessions and liberties of which she was damnably despoiled, and he intends to grant greater liberties than ever otherwise she has been wont to have.

May it please you therefore, most Holy Father, for the sake of justice and general peace mercifully to approve what we have done as regards our said lord and king Edward Bruce, forbidding the King of England and our aforesaid adversaries henceforward to molest us, or at least be pleased to render us with fitting favour our due complement of justice in respect of them.

For know, our revered Father, that besides the kings of lesser Scotia who all drew the source of their blood from our greater Scotia, retaining to some extent our language and habits, a hundred and ninety seven kings of our blood have reigned over the whole island of Ireland.”

The Avignon Papacy neither recognised Edward Bruce’s claim to the High Kingship of Ireland, nor did it respond favourably to the Irish princes’ Remonstrance.  In October 1318 the Scots-Irish army under Edward Bruce was defeated by the Anglo-Norman forces of Edward II.   Edward Bruce was killed, his body quartered and sent throughout Ireland and his head delivered to King Edward II. Continue reading


Aidan O’Neill

Looking back on the result of the Brexit vote, future historians may well conclude that the post-WW II United Kingdom of Great Britain and Northern Ireland was, like Belgium, held together by the European Union.

Flanders and Wallonia dare not split into independent countries (despite decades of mutual antipathy and non-co-operation) because neither wishes to lose Brussels as its capital.   But London does not hold the UK together. The Brexit vote revealed the vast gulf in social attitudes and political aspirations between London and the rest of England. The encircling M25 haloes and isolates London, just as the medieval palisade separated pre-Tudor Dublin from “Irish” Ireland.   L’Angleterre profonde now lies beyond the Pale, and London as an international city state in waiting is profoundly out of sympathy and out of step with it.

Meanwhile, north of Hadrian’s Wall, a different politics flourishes in which London, and the rest of England, appear increasingly irrelevant.   The SNP now run a minority administration from Edinburgh, largely as a result of the remarkable resurrection of the Tory vote under the leadership of Ruth Davidson MSP and the continued collapse of the Labour vote under the leadership of Kezia Dugdale MSP. But the Scottish Tories keep their distance from their sister party to the south and contemplate, as part of their on-going de-toxification, dropping the label “Conservative” and returning to their pre-1965 designation as the Scottish Unionists.   And Scottish Labour sinks into yet deeper irrelevance, while flirting with talk of a post-Brexit complete federalisation of the UK.

In his speech on 14 September 2014 following the result of the Scottish independence referendum (in which one of the claims made by those advocating the status quo was that only by voting to stay in the UK could Scotland ensure that it remained within the EU) the then UK Prime Minister David Cameron proclaimed that he was “a passionate believer in our United Kingdom” and that he “wanted more than anything that our Union stay together”.   And in her 13 July 2016 acceptance speech on succeeding him as UK Prime Minister Theresa May noted that

“The full title of my party is the Conservative and Unionist Party. And that word unionist is very important to me. It means we believe in the union, the precious, precious bond between England, Scotland, Wales and Northern Ireland.”

But just what makes this bond so doubly “precious” and why it should be the object of “passionate belief” has not been further developed.   It is not clear that this is, in any event, a sentiment that is shared in l’Angleterre profonde by whose votes the Conservative party won its unexpected majority in the House of Commons in May 2015.   The Conservative successful general election campaign was marked by dog-whistle anti-Caledonian insinuations that a vote for the Labour Party meant a vote for the SNP in coalition with it, putting “sad Ed” Miliband into the pockets of “smart Alec” Salmond and “tricky Nicky” Sturgeon.

As the distinct polities which make up the still nominally United Kingdom grow ever further apart, the only solution which appears to be offered is the delegation – but never the complete transfer – of more powers to the English regions and to the non-English nations.  This might be termed disintegrative devolution.

But the shibboleth of sovereignty means that power is never unequivocally divested from Westminster.   Powers devolved are powers retained.   Thus when it comes to the (Brexit) crunch from a Westminster perspective, while the devolved legislatures and executives may properly expect to be consulted on and advised of negotiations, they cannot expect to participate in them.   And they are certainly not regarded as having any power to prevent either the UK as a whole, or any of its constituent parts, from leaving the EU, notwithstanding that in the Brexit referendum (in which UK resident Commonwealth and Irish citizens, but not other EU citizens, had a vote) Scotland voted 62% in favour of remaining in the EU against 38% for leaving it, while the vote in Northern Ireland was 56% for remain and 42% for leave.

Unlike Westminster, the devolved legislatures are elected on the basis of a franchise which gives the vote to citizens of other EU member states lawfully resident in their territories.   The devolved executives may therefore properly claim to have obtained a democratic mandate from, and be democratically accountable, to these EU citizens; and may plausibly claim to have the constitutional duty to represent and give voice to those individuals’ concerns and claims.   But the fact that EU citizens currently lawfully resident in the UK are mentioned both by the Prime Minister and by her newly appointed Secretary of State for Exiting the European Union, David Davis MP, only in the context of their possible use as human shields or bargaining counters in the Brexit negotiations rather indicates that the little Englander politics of the “nasty party” have not been wholly abandoned under this new UK premiership. Continue reading

10 (pro-EU) reasons to be cheerful after Brexit

Cormac Mac Amhlaigh

As the dust continues to swirl around the momentous Brexit referendum result a month ago (and doesn’t show any signs of settling anytime soon) I suspect many EU sympathisers will be somewhere in the middle of the various stages of the Kübler-Ross Grief cycle: denial, anger, bargaining, depression, acceptance. So, somewhat incongruosly, are the ‘leavers’. Whereas there are almost as many emotions being experienced on all sides as there are potential options on what will happen next both in terms of the UK’s future relationship with the EU as well as the future of the EU itself, in this post I want to set out a number of (pro-EU) reasons – some obvious, some optimistic, others wildly speculative – to be cheerful amidst the uncertainty created by the Brexit vote.

  1. It is worth reminding ourselves that (a version of) the EU existed before the UK joined in 1972 (with Denmark and Ireland) and it will survive its withdrawal. Brexit will not have the same effect as one of the founding six, and particularly say Germany or France, leaving the bloc.
  1. The feared domino effect of other Member States agitating to leave has not transpired. Indeed post-Brexit opinion polls have shown a bounce in support for the EU in other EU Member states since Brexit.
  1. Even were an in/out referendum to be held in another EU Member state, there are good reasons to believe (barring unforeseeable ‘exogenous shocks’) that a majority would not vote to leave. No other EU Member State has a national media so relentlessly hostile to the EU as the UK. The UK’s top-two selling national newspapers (with a combined circulation as much as the next three put together) are rabidly anti-EU and a study released during the referendum campaign found that even the UK’s supposedly ‘neutral’ state broadcaster, the BBC, had been overwhelmingly negative about the EU over the past fifteen years. Against this heavily Eurosceptic background, there was still only 3% difference between leave and remain in the referendum result. This augurs well for an EU referendum in an EU Member state with a less hostile media.
  1. The referendum and its aftermath has increased curiosity, interest and knowledge about the EU and what it does among many previously disinterested EU citizens. Most obviously in the UK where google reported a sharp rise in searches asking was ‘What is the EU?’, albeit that this was after the polls had closed. Admittedly, much of this knowledge and information is starting from a pretty low base but any improvement has to be a good thing for the EU.
  1. Ever since the last British government passed the EU Act 2011, which requires referendums in the UK on certain future reforms at EU level, future EU reform would have been considerably hamstrung by the UK through the floating of a ‘referendum veto’ at every turn in negotiations.   An actual referendum on future EU reform, even reform which would have been disproportionality advantageous to the UK, would have been very unlikely to succeed given the general eurosceptic feeling in the UK as exemplified in the Brexit referendum result. Future negotiations would therefore have involved even more protracted wrangling over EU reform than is usually the case, with increasingly less patience with the UK among other EU Member States. In the Brexit result, future EU reform has dodged a considerably large UK-shaped bullet allowing for better reform at the EU level at a time when it needs to be efficient and decisive in the face of the many issues it currently faces.
  1. The Brexit vote has put EU legitimacy back on the agenda (again!). It provides a useful time to reflect on the broader legitimacy of the EU, particularly from the viewpoint of citizen knowledge about, and engagement with, the EU. Vital lessons can be learned from the way in which the EU was presented as well as misrepresented in the Brexit campaign debates and the extent to which EU questions tend to be dominated by domestic political concerns. This should feed into analysis and reflection on the never-ending project that is the enhancement of the EU’s legitimacy. Furthermore, unlike the high-stakes, pressure-cooker atmosphere of the eurocrisis, the Brexit vote has been followed by an important ‘cooling down’ period (helped considerably by Cameron’s decision not to push the Art. 50 button on his resignation) which allows for more probing and searching analysis into these big questions and better solutions to be developed.

Continue reading

The CJEU’s Headscarves cases: analysis of the contrasting AG opinions

Darryl HutcheonDarryl Hutcheon

Conflicts between the religious practices of workers and the ‘neutrality’ policies of their employers have repeatedly come before the European Court of Human Rights (“ECtHR”) and domestic courts in the UK. They now arise for the first time before the Court of Justice of the European Union (“CJEU”) in two cases: C-188/15 Bougnaoui v Micropole SA and C-157/15 Achbita v G4S Secure Solutions NV80. This note analyses the opinion of Advocate General Sharpston in Bougnaoui handed down on 13 July 2016; contrasts that opinion with the earlier opinion[1] of AG Kokott in Achbita; and considers what these decisions tell us about the future trajectory of EU (and domestic) discrimination law.

Facts in both cases

Ms Bougnaoui and Ms Achbita are Muslim women who were employed in customer-facing roles by private sector employers. Both wore headscarves but wore nothing which covered their faces. Ms Bougnaoui was told that her headscarf had ‘embarrassed’ the employees of a company client she had visited; she was dismissed when she refused to agree not to wear a headscarf on future visits to that client. Ms Achbita had worked for her employer for some time before she started to wear a headscarf; she was then dismissed on the basis that her new practice breached a strict company ‘neutrality’ policy.

AG Sharpston’s opinion in Bougnaoui

Several aspects of AG Sharpston’s opinion are worthy of comment.

First, she rejected the suggestion that EU law on religious discrimination ought precisely to reflect the ECtHR’s article 9 (freedom of religion) jurisprudence, in effect by allowing a human rights justification/proportionality defence to direct discrimination claims ([58] – [67]). AG Sharpston maintained that the Framework Directive 2000/78 (“the Directive”) set down a clear distinction: indirect discrimination can be defended by reference to proportionality, but direct discrimination admits of (much) narrower exceptions.[2] Her position stands in contrast to the view expressed by some senior judges in the UK that the lack of a general justification defence to direct discrimination is a “defect” in the law: see e.g. R (E) v Governing Body of JFS [2009] UKSC 15 at [9].

Second, AG Sharpston concluded that the decision to dismiss Ms Bougnaoui constituted direct, and not just indirect, discrimination ([83] – [89]). “Religion” for these purposes included manifestations of religion like wearing a headscarf. The judgment does not directly engage with the question of how courts should identify whether a particular act constitutes a “manifestation of religion”, but the case-law of the ECtHR on that subject will doubtlessly be persuasive. The recognition that religion is not just a status but an identity partly constituted by acts is intuitively attractive and compares favourably to the sometimes strained efforts of British judges to dissociate “religion” from acts which are obviously part and parcel of a person’s religion.[3] It leaves open the interesting question of whether EU law will permit employers to sanction employees whose religiously-motivated behaviour impacts negatively on other employees or on their work (as in the well-known “evangelising at work” cases). English courts have addressed this situation by distinguishing action taken because of religion/religious manifestations and action taken because of “the way in which (a worker) manifested or shared it”.[4] AG Sharpston’s opinion can probably be reconciled with that approach.

Third, AG Sharpston concluded that there was no basis to conclude that article 4(1) of the Directive (the genuine occupational requirement defence to direct discrimination claims) applied on the facts ([90] – [102]). It was decisive that Ms Bougnaoui remained perfectly able to perform her professional duties. Notably, AG Sharpston found it “hard to envisage” any application of the article 4(1) defence in religious discrimination claims, other than on health and safety grounds ([99]). She also gave a narrow reading to article 2(5) of the Directive (pursuant to which the Directive is subject to national measures which are necessary in pursuit of various public policy objectives), suggesting it could not be relied on by employers citing business reasons ([104] – [105]).

Fourth, AG Sharpston remarked on the application of the principles of indirect discrimination (in case the Court concluded that her characterisation of the claim as direct discrimination was mistaken). While an employer’s business reasons could constitute a legitimate aim, the question of proportionality was more complex ([134]). These kinds of issues could ordinarily be resolved by discussion between employer and employee; but ultimately, where an employer stood to lose out because of the prejudiced attitudes of its customers, “the business interest in generating maximum profit should… give way to the right of the individual employee to manifest his religious convictions” ([133]).

Continue reading

An analysis of the EU law questions surrounding Article 50 TEU: Part Two

Dr Philip Syrpis

This is the second and final part of this series; the first is available here.

7. What is the status of the UK during the negotiation process?

As discussed above, subject to application of paragraph 4, which deals with participation in discussion in the European Council and Council relating to the withdrawal process, the withdrawing State remains a Member State of the EU, with rights and obligations intact.[1]

As regards the rights of the withdrawing State, certain interpretive difficulties may arise in any attempt to delineate the situations in which the withdrawing State may, and may not, be involved in European Council and Council decision-making. Once again, this is an area in relation to which the guidelines provided by the European Council may provide clarity. In practice it seems almost inevitable that the role and influence of the withdrawing State will inevitably diminish. It is unclear whether the State will have an interest in influencing the making of decisions at EU level which might well never concern it; and arguable that it is not legitimate to afford it such a role. The power of the argument against involvement will of course depend on the extent to which it is envisaged that the withdrawing State aspires to continue to have a relationship with the EU.

As regards obligations, the UK will continue to be bound by EU law rules until the withdrawal agreement enters into force.[2] This includes new EU legislation adopted after Article 50 is triggered, but before the withdrawal agreement enters into force.[3] While the UK is due to assume the Presidency of the Council in the second half of 2017, it is anticipated that alternative arrangements will be made in order to ensure the efficient functioning of the Union.[4] The principle of sincere cooperation enshrined in Article 4(3) TEU would continue to apply, and there are suggestions that it might be used in relation to the conduct of the withdrawing State during the process of withdrawal.[5]

8. How is the withdrawal agreement concluded?

Finally, there are significant uncertainties relating to the conclusion of the withdrawal agreement, both by the EU and the withdrawing State.

Let me begin with the position as regards the EU. The withdrawal agreement itself is negotiated as an EU external agreement, as is made clear by the reference to Article 218(3) in Article 50. Paragraph 2 provides that the agreement is to be concluded ‘on behalf of the Union by the Council acting by qualified majority after obtaining the consent of the European Parliament’.[6] Thus, it is possible for an agreement to be reached without the approval of all 27 Member States; and, unlike in the case of accession, for the scope of the Union to be altered notwithstanding the lack of the unanimous consent of the Member States. Equally, it is possible for an agreement not to be concluded notwithstanding the fact that it is approved by the governments of all the Member States. No agreement can be concluded if a majority in the European Parliament vote against it. It is also possible, as discussed in e) above, that alongside any withdrawal agreement, there will be another agreement, or set of agreements, dealing with the future relationship between the withdrawing State and the Union. To the extent that any such agreements are mixed agreements, they require ratification by all Member States, a process which will inevitably slow down the conclusion of the negotiation process.[7]

On the side of the UK, the withdrawal agreement would require ratification in Parliament, in accordance with the UK’s constitutional requirements.

How might these questions be settled?

The discussion so far indicates that many of the EU law questions relating to the process of withdrawal from the EU are unresolved. Nevertheless, given the uncertainty inherent in Article 50, it is contended here that it is possible, perhaps probable, that there will be litigation in relation to the process. There is the potential for such litigation to occur at both the national and the European level. It is difficult, at this stage, to predict the form which such litigation might take, but there are a range of claims which it is possible to envisage.

Claims may come before the European Court of Justice in the following ways. The most obvious basis for legal action will be in relation to the content and scope of any withdrawal agreement. Such an action might relate both to the procedures through which the withdrawal agreement was reached, and the substantive terms of any such agreement; and might come before the Court either directly in an Article 263 TFEU judicial review action, or indirectly, via a preliminary reference from a national court under Article 267 TFEU. It may, in addition, be possible to seek an advisory opinion from the Court via Article 218(11) TFEU as to whether the agreement is compatible with the Treaties. Actions may also be brought at earlier stages in the process, for example in relation to whether the negotiation process is compatible with EU law. As has been mentioned above, it is possible to envisage the making of claims against the withdrawing State, not only by the Commission under Articles 258 and 260 TFEU, but also, potentially, by the European Council and Council under Article 7 TEU.

There is already discussion of legal action in the UK on the basis of the conduct of the referendum campaign, and over the constitutionality of any decision to pull the Article 50 trigger.[8] Such litigation is likely to raise questions relating to the interpretation of EU law (most obviously, in relation to the interpretation of Article 50, perhaps based on the points discussed above), which the UK courts may decide to refer to the Court of Justice. At each stage of the process, legal action is possible – for example in relation to the conduct of the negotiations, and of course, in relation to the scope and substantive content of the withdrawal agreement(s).

This paper suggests that, in order to avoid the risk of litigation, the rules of the process should be clarified via the guidelines to be provided by the European Council. So as to be able to fulfil this function, the guidelines must be provided prior to any decision by the UK to trigger A50, and should provide as much clarity as possible in relation to the key questions discussed above, including in particular in relation to the ability of the UK to rescind the notification process, the scope of the withdrawal agreement(s), the status of the UK during the withdrawal process, and the mechanisms through which the withdrawal agreement(s) may be concluded. It is recommended that the UK government be fully involved in the drawing up of these guidelines. It may, of course, be that agreement is impossible to attain, or that the European Council refuses to provide guidelines before the decision to trigger Article 50. In such circumstances, it may be that there is litigation in relation to the Article 50 process, with courts playing a key role in shaping the process of withdrawal.

A suggested way forward

It hardly needs to be said that this is a crisis situation for the European Union. The prospect of the withdrawal of the UK from the EU is fraught with economic and political risk. Article 50 is intended to provide for the orderly exit of States from the Union. Whether or not this goal is achieved will largely depend on the conduct of the withdrawing State and the process of negotiation. Nevertheless, the legal framework in which the negotiations take place is also significant, as it determines the parameters within which the range of political actors involved will frame their strategies. The text of Article 50 provides very few answers. Nevertheless it envisages the provision of guidelines by the European Council. These may operate as the vehicle through which the answers to the legal questions identified in this paper are developed. In order to be able to play this role, they should, in the wake of the referendum outcome, be provided in advance of any decision by the UK to trigger Article 50. And, to the extent that this is possible, they should, notwithstanding the wording of Article 50(4), be agreed in negotiation with the UK, in order to minimise the risk of what may prove to be complex litigation, across more than one jurisdiction, in relation to the conduct of the withdrawal process.

I have argued above for Article 50 to be interpreted in a way which ensures that the UK is best able to maintain a working relationship with the UK, and achieve a settlement in which the interests of citizens of the EU are best protected. This suggests that the European Council guidelines should provide not only for a withdrawal agreement, but also for an agreement which defines the future relationship between the UK and the EU. To the extent that this objective is not achievable within two years, the European Council should commit to extending the time period. Most importantly, it should be made clear it is possible for the UK to rescind its notification, together with any procedural steps to be taken in order to stop the process.

Once there is more clarity, the UK will be able to consider its response. The calls to refuse to pull the Article 50 trigger are increasing, with legal efforts within the UK directed to imposing pressure on Parliament, either as a result of the conduct of the referendum campaign, or a result of the rights affected by the withdrawal process, not to trigger Article 50. While this option might be constitutional as a matter of UK law, it would carry with it a multitude of social risks, furthering poisoning relationships between the political elite and the people, who may feel that the result of the referendum has been ignored.[9]

It would be far better for Parliament to accede to the will of the people, and trigger Article 50; but only once the Article 50 process has been clarified; and it is argued here that this should be via European Council guidelines relating to the process of negotiation. Parliament has a role in scrutinising these guidelines, and in providing full guidance to the government and the people in relation to the substantive content and scope of the negotiations, the negotiation timetable, and the steps to be taken in relation to the conclusion and ratification of the resulting agreement(s).

As has been argued above, it should be made clear that it is possible for the UK to rescind the Article 50 notification. The European Council should commit to negotiations with the UK in relation not only to a narrow withdrawal agreement, but also to a broader agreement on the future relationship between the UK and the EU. It is only if these two conditions are met – and it may be possible for the UK to exert not only political but also legal pressure on the European Council in relation to the content of the guidelines – that it is possible to envisage a legitimate outcome to this crisis.

The clarification of the uncertainty surrounding the Article 50 process will enable the UK to make an informed decision in relation to the pulling of the Article 50 trigger. The UK government must then work on its negotiating strategy, and seek to reach an agreement with the EU27 which deals with withdrawal and the future relationship between the UK and the EU. It is only during the process of negotiation that it will become clear what leaving the EU will actually entail. There will, presumably, be a range of difficult decisions, for example in relation to the UK’s desire to control immigration, and to retain access to the single market (and we will all learn a lot about the operation of the EEA, and Switzerland’s relationship with the EU); and about the acquired rights of EU citizens in the UK, and UK citizens in the EU. In the time period in which negotiations will occur, there will no doubt be significant economic and political change within both the EU and the UK. Towards the end of the negotiation period, it will be possible for the UK to make an informed choice; either a) to rescind its notification and remain within the EU, b) to accept the negotiated deal, or c) to exit the EU without a deal. That decision will be for the UK, in accordance with its constitutional requirements. Parliament will of course be involved, and consideration will no doubt be given to allowing the people to have a further say, either via a general election or indeed a second referendum.

The process of withdrawal is not going to be easy. The EU law framework surrounding the operation is very unclear, with the provision of guidelines by the European Council representing a key moment in which it is possible to contribute towards the legitimacy of that process. This paper offers a number of recommendations. It is to be hoped that it prompts careful consideration of the options ahead, so that it is possible to arrive at a legitimate outcome, in which the interests of citizens of the EU are, as far as possible protected.

[1] Nationals of the withdrawing State will, in principle, retain their positions in the EU institutions pending the entry into force of the withdrawal agreement. It is interesting in this regard that there seem to be no plans to replace Lord Hill, the UK Commissioner who resigned in the wake of the referendum result.

[2] It should noted that there may be complications in relation to the enforcement of EU law against the withdrawing Member State; whether before the Court of Justice, under Article 258-260, or before the national courts. See further below.

[3] House of Lords European Committee Report, n7 above at [58].

[4] It seems that Estonia, due to hold the Presidency in the first half of 2018, will assume the Presidency in the second half of 2017; see https://euobserver.com/political/134109.

[5] See Hillion, n4 above at 139-40.

[6] On the possibility of a turf war between the EU institutions, see Duff, n4 above.

[7] See Lazowski, n4 above at 528.

[8] See https://www.theguardian.com/law/2016/jul/03/parliament-must-decide-whether-or-not-to-leave-the-eu-say-lawyers and http://www.theguardian.com/politics/2016/jul/05/deadline-approaches-government-response-brexit-legal-challenge-article-50.  

[9] See also R Ekins, ‘The Legitimacy of the Brexit Referendum’, UK Constitutional Law Association Blog, available at https://ukconstitutionallaw.org/2016/06/29/richard-ekins-the-legitimacy-of-the-brexit-referendum/.

What next? An analysis of the EU law questions surrounding Article 50 TEU: Part One

Dr Philip Syrpis

On June 23, the UK voted by a margin of 52% to 48% to leave the EU.[1] Within hours of the result, significant questions, which hardly surfaced during the long campaign, about the process of withdrawal and the possible terms on which it might take place began to emerge. The majority of these are political; as developments within both the Conservative and Labour parties amply testify. But many are legal. Much attention has, quite rightly, focused on questions of UK constitutional law – with lively debate about the status of referendums, the relationship between Parliament and the royal prerogative, and the role of the Scottish Parliament and Northern Irish Assembly. EU law has also been discussed, with Article 50 TEU, the provision introduced in the Treaty of Lisbon enabling a Member State to withdraw from the EU, being the principal focus.

In this short paper, I offer a tentative analysis of the EU law questions surrounding withdrawal from the EU; focusing on the interpretation and application of Article 50 TEU. The text of Article 50 contains a number of ambiguities, and the answers to many of the legal questions which arise are shrouded in uncertainty. This uncertainty contributes towards the volatility of the current situation, damaging the European economy. I offer some thoughts on the mechanisms through which answers might emerge. Throughout, I suggest possible answers to the legal questions. These are informed by the current political context, and are designed to ensure that the withdrawal process produces an outcome which is legitimate from the perspectives of both the UK and the EU.[2]

At the outset, it is worth emphasising two important points, which might otherwise be obscured.

First, it is all too easy in this context, as I have above, to refer to ‘the UK’ and ‘the EU’. This leads to the belief that both are monolithic entities with set objectives, one ranged against the other as the withdrawal process begins. This is of course not the case. The referendum has made it clear that the UK is a divided nation. England and Wales voted to leave, while Scotland and Northern Ireland voted to remain. There are also painful divisions between urban and rural areas, and the young and the old. Leave campaigners were not forced to, and (at least insofar as their objective was to win the referendum, sensibly) did not choose to articulate a clear vision of the future relationship between the UK and the EU. As a result, the referendum does not offer a clear mandate to the UK government, or to Parliament, which it might use to guide it in withdrawal negotiations. The EU is also divided. The EU institutions, and the governments of the Member States did not want ‘Brexit’, and cannot be expected to be united in their response. Many governments have trade interests which they want to protect. Others see economic opportunities in adopting a harder line against an always reluctant partner. All have an eye on the domestic political context. It is not immediately obvious what sort of deal with the UK best serves the ‘EU interest’.

Second, the legal analysis presented here is, as stated above, tentative. This paper is written in the immediate aftermath of the UK’s vote to leave the EU. I have little doubt that various elements of the legal argumentation can (and hopefully will) be further developed. It is also inevitable that some of the analysis presented here will be overtaken by events, and that much may in the end depend on the resolution to questions not posed here. There is nevertheless, I hope, some utility in producing this analysis at this stage, with the explicit aim of informing the debate among the key actors involved in the Brexit negotiations in this key period before the positions of the European institutions and the governments of the Member States begin to crystallise.

The Article 50 TEU process

The Treaty of Lisbon, via Article 50 TEU, introduced a specific EU law mechanism through which States may withdraw from the European Union. One searches in vain for an analysis of the provision in the main EU law textbooks. The origins of the provision lie in the draft Article I-60 of the Treaty establishing a Constitution for Europe.[3] As such, Article 50 is ‘an integral part of the EU constitutional(izing) package, rather than an element of the de-constitutionalization course instigated by the 2007 Intergovernmental Conference, following the rejection of the Constitutional Treaty’.[4] It has not been used, or tested.[5] In the context of the referendum in the UK, the Article was analysed in detail by the UK Government,[6] and the House of Lords European Committee,[7] and the European Parliament.[8] In the days following the vote in favour of leaving the EU, the Houses of Parliament have produced further reports,[9] and the withdrawal procedure has been the focus of much analysis and speculation.[10]

As Hillion says, ‘a common critique in the literature is that the procedure of Article 50 is formulated in an ‘incomplete’, ‘unclear’, if not ‘cryptic’ fashion, thus generating ‘uncertainty’’.[11] As will become clear below, the text of the provision does not provide answers to many of the key legal questions. Were the interpretation of the Article to come before the Court of Justice, and there is some discussion below of the circumstances in which this may occur, it could therefore be expected to apply a flexible purposive approach.[12] Hillion argues, and some may find this rather paradoxical, that Article 50 has a specific function in relation to the integration process in that it ‘bolsters the normative basis for a negotiated withdrawal’ and ‘points towards a strong post-withdrawal engagement by the Union with the former Member State’.[13] My analysis below builds on this approach, seeking to interpret the provision in the context of the current situation in a way which ensures that the UK is best able to maintain a working relationship with the EU, and achieves a settlement in which the interests of citizens of the EU are, as far as possible, protected. Any other approach, such as one, for example, based on the safeguarding of the interests of the EU27 at the expense of the interests of the withdrawing State, should be rejected.

Article 50 provides that a Member State ‘may decide to withdraw from the Union in accordance with its own constitutional requirements’. It ‘shall notify the European Council of its intention’. A process of negotiation ensues, ‘in the light of the guidelines provided by the European Council’. Paragraph 3 makes it clear that the Treaties ‘shall cease to apply to the state in question from the date of entry into force of the withdrawal agreement, or failing that, two years after the notification’, ‘unless the European Council, in agreement with the State concerned, unanimously decides to extend this period’. Thus, the withdrawing state remains a full member of the EU until the process has run its course, though paragraph 4 does provide that ‘for the purposes of paragraph 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it’. Finally, paragraph 5 states that ‘if a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49’; that is the normal accession procedure.

The operation of Article 50 raises a number of difficult legal questions. In the sections below, this paper considers 1) whether it is possible to withdraw from the EU without using the Article 50 process; 2) who makes the decision to trigger Article 50; 3) whether there should be informal negotiations prior to the triggering of Article 50; 4) whether it is possible to rescind an Article 50 notification, or otherwise stop the withdrawal process; 5) the scope of the withdrawal negotiations; 6) the extension of the two-year time period; 7) the status and likely influence of the UK during the negotiation process; and 8) the conclusion of the withdrawal agreement. It then considers the ways in which any disagreements as to the operation of Article 50 may be resolved; before concluding with an analysis of way in which the EU law might be developed in such a way as to ensure that a legitimate outcome will emerge.

1. Is it possible to withdraw from the EU without using Article 50?

Prior to the Treaty of Lisbon, there was academic debate over whether it was even possible to withdraw from the European Union or Community, given the commitment to ‘ever closer union’ in the Treaties, and the ‘unlimited’ duration of the enterprise.[14] It seems clear that withdrawal must always have been legally possible;[15] in the absence of specific EU law provisions, withdrawal would take place under public international law rules, in particular the rules established in the Vienna Convention on the Law of Treaties.[16] The inclusion of Article 50 in the Treaties in 2009 ‘reflects the intention to submit [withdrawal] to the canons of the EU legal order, instead of leaving it to the vicissitudes of international law’,[17] and to establish a withdrawal process which is able to lead to an orderly exit from the EU, in which levels of disruption and uncertainty are minimised. In the operation of Article 50, these objectives should be borne in mind.

Within the domestic debate there has been discussion of whether there are alternatives to Article 50. There have been suggestions, in particular among leave campaigners,[18] to the effect that it would be possible to effectuate withdrawal via repeal of the European Communities Act 1972, and thereby reclaiming the ability to legislate domestically free from EU law constraints. This would open up the possibility for legal action to be brought against the UK, under EU and international law.[19] The House of Lords in May 2016 stated that Article 50 provides the only means of withdrawing from the EU consistent with the UK’s obligations under international law: ‘A Member State could not fall back on the Vienna Convention on the Law of Treaties to avoid the withdrawal procedures in Article 50, because the Vienna Convention had to be read in the light of the specific procedures for treaty change laid down in the EU Treaties’.[20] As opinion in the UK has quickly coalesced around the proposition that withdrawal will be pursued via the Article 50 route, the rival arguments are not considered further here

2. Who makes the decision to trigger Article 50?

The decision to trigger Article 50 is said to be for the withdrawing state, ‘in accordance with its constitutional requirements’. The EU institutions, including the governments of the EU27, cannot impose legal pressure on the withdrawing State; though of course they may be able to exert some political pressure,[21] seeking, for example, to ensure that the economic and political uncertainty following the UK’s vote on 23 June is minimised. As a matter of UK constitutional law, it is clear that the referendum only has advisory status.[22] There have been debates within the UK about the extent to which the decision to trigger Article 50 is for the Prime Minister, acting under prerogative powers,[23] or for Parliament;[24] and also questions about the extent to which the Scottish Parliament may be able to influence, or perhaps even veto, any decision to pull the Article 50 trigger.[25] To the extent that the decision to trigger Article leads inexorably to a process through which the UK withdraws from the EU, with a resultant effect on a range of legal rights, protected by virtue of EU law and the operation of the European Communities Act 1972, it seems as though the approval of Parliament is required.[26] And, it is certainly legally possible that, notwithstanding the referendum result, Parliament might decide not to trigger Article 50.[27]

While the EU institutions cannot impose legal pressure on a State to trigger Article 50, the process of withdrawal is governed by EU law. A notification for the purposes of Article 50, should only be treated as a notification if it is made according to the conditions laid down in Article 50. Thus, where a notification is presented to the European Council, it should ensure its admissibility. As discussed below, it may be possible for questions relating to the validity of any notification to come before the courts. However, given that the only substantive condition relating to the notification of the intention to withdraw relates to compliance with domestic constitutional requirements, it is to be anticipated that, in any case before it, the European Court of Justice will tread carefully.[28] As far as possible, it should leave questions of national constitutional law to be determined within the Member State.

3. Should there be informal negotiations before Article 50 is triggered?

The Article 50 process, to the extent that it is outlined in the Treaties, only begins once a valid notification has reached the European Council. As such, it seems that questions relating to whether there may or may not be informal negotiations between the withdrawing state and the EU institutions relating to the withdrawal process are to be determined in the political rather than the legal realm.[29]

The legal position is also unclear in relation to when the ‘guidelines provided by the European Council’, in the light of which the Union is to negotiate and conclude an agreement with the withdrawing state, are to be adopted, or what their scope might be. By virtue of paragraph 4, it is said that the withdrawing state shall not participate in the discussions in the European Council ‘for the purposes of paragraph 2 and 3’ or ‘in decisions concerning it’.

In this paper, it is argued that these guidelines are likely to assume much importance, in particular in relation to the current situation, in which Article 50 may be triggered for the first time. It is suggested that it is important that agreement is reached between the European Council and the UK, in relation to full details of the withdrawal process, the scope of a withdrawal deal, and the mechanisms through which the deal will be concluded and ratified; and crucially, that this should occur before the decision to trigger Article 50. The legitimacy of withdrawal process will be enhanced to the extent that the UK Government is as fully aware as possible of the consequences entailed by triggering Article 50, and is able to secure informed constitutional consent for embarking on the withdrawal process.[30] Thus, it is to be hoped that the European Council, in the wake of the referendum result, and before any decision to trigger Article 50, is working on the preparation of these guidelines, and is consulting with representatives of the UK in relation to their content. If the EU institutions are unwilling to provide guidelines, the UK government should apply whatever legal and political pressure it is able to muster in order to obtain clarification from the EU institutions in relation to the conduct of the withdrawal process; making it clear that the levels of uncertainty over the process of withdrawal are likely to delay the decision to trigger Article 50.

4. Is it possible to rescind an Article 50 notification or otherwise stop the process?

Perhaps the most fundamental question to which a legal answer is required is whether it is possible for the withdrawing State, having notified its intention to withdraw, to rescind or revoke the notification, or, in any other way end the withdrawal process. Article 50 does not explicitly contemplate this possibility, but neither does it explicitly rule it out. There has been very little academic comment on this issue, but given the uncertainties surrounding the way in which the UK Government might seek to act following the referendum, it is an urgent question. Paragraph 4 indicates only that the Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement, ‘or failing that, two years after the notification… unless the European Council, in agreement with the State concerned, unanimously decides to extend this period’. That may be read as meaning that once the trigger is pulled, the inexorable outcome is either withdrawal from the EU on the basis of the negotiated deal, or, in the event that a deal is not agreed within the two year period and there is no unanimous agreement to extend it, a default ‘no deal’ position, in which the UK’s relationship with the EU is governed by standard WTO rules. However, if it is possible to read in the option for the withdrawing Member State to ‘stop the clock’, it may be that there is a third possible outcome: a decision, taken within the two-year negotiating period, to rescind or revoke the notification and remain within the EU.

The clearest statements on this point were made in the evidence presented to the House of Lords in February 2016. Sir David Edward and Sir Derrick Wyatt QC were clear that it is possible to reverse a decision to withdraw at any point before the date on which the withdrawal agreement takes effect. In the words of Professor Wyatt:

“There is nothing in the wording to say that you cannot. It is in accord with the general aims of the Treaties that people stay in rather than rush out of the exit door. There is also the specific provision in Article 50 to the effect that, if a State withdraws, it has to apply to rejoin de novo. That only applies once you have left. If you could not change your mind after a year of thinking about it, but before you had withdrawn, you would then have to wait another year, withdraw and then apply to join again. That just does not make sense. Analysis of the text suggests that you are entitled to change your mind.”[31]

Other commentators take a different view. Barber, Hickman and King, for example, proceed on the basis that the Article 50 process is irreversible; ‘there is no turning back once Article 50 has been invoked. If no acceptable withdrawal agreement has been reached within two years, the exiting Member State is left without any deal with the EU’. They conclude that the UK ‘could not safely assume that it is entitled to withdraw its notification on the basis of the terms of Article 50’.[32]

The Treaty of Lisbon appears to have been drafted with the assumption that Article 50 would only be triggered, in accordance with constitutional requirements, once a clear consensus had been reached within the withdrawing Member State. Regardless of the arguments now raging in the UK about the authority and legitimacy of the referendum, the responsibility of Parliament, and the role of the Scottish Parliament and Northern Irish Assembly, it seems at the very least possible that the decision by a Member State to withdraw from the EU might be politically contested, and subject to significant internal scrutiny. After all, it is widely anticipated that the negotiation of any withdrawal agreement would take two, or perhaps more years. Within such a time period, political constellations are likely to shift appreciably. It is also, and this is a point to which I return in the final section, only once negotiations with the EU have begun, that the nature of the withdrawing State’s future relationship with the EU, and together with that, the practical consequences of withdrawal, will begin to emerge.

All this militates in favour of a reading of Article 50 which makes it possible for the Member State to revoke a notification.[33] It is, for example, possible to envisage the following scenario. A decision to trigger Article 50 provokes turmoil in a Member State. A general election follows. A decisive majority is attained by parties advocating remaining within the EU. In such circumstances, it seems ludicrous to hold the State to the commitment to negotiate a withdrawal agreement from the EU, and then afford it the opportunity to apply for readmission under Article 49. It is clearly far simpler to allow the withdrawal process to be stopped.

Given the uncertainty here, and the clear link between ascertaining an answer to this question and making the decision to pull the Article 50 trigger, it seems imperative that an answer is found either via the European Council guidelines, or, if necessary, in an action before the Court of Justice to interpret EU law.

5. What is the scope of a withdrawal agreement?

The agreement to be concluded with the withdrawing State, is, according to Article 50(2), to set out ‘the arrangements for withdrawal taking account of the framework for its future relationship with the Union’. This appears to envisage a distinction between the withdrawal agreement (or ‘divorce settlement’), and any future framework, which might be ‘left for a more comprehensive agreement, to be negotiated at a later date’.[34]

Legally, it seems as though even the ‘divorce’ may well require more than one agreement. According to Lazowski, ‘agreements on withdrawal, falling under the category of international Treaties [concluded in accordance with the procedure laid down in Article 218(3) TFEU], cannot amend EU primary legislation but can regulate non-primary law matters only. This implies that alongside an international treaty regulating withdrawal, the remaining Member States will – most likely – have to negotiate between themselves a treaty amending the Founding Treaties in order to repeal all provisions touching on the departing country’.[35]

When one considers the relationship between the divorce agreement and any agreement on the envisaged future relationship between the withdrawing State and the European Union, the picture becomes still murkier. If the aim is to reach agreement between the withdrawing State and the EU within the two year time period, the withdrawal agreement should be limited in scope. If on the other hand, the objective is to set the course for the future relationship, the agreement will of course need to be broader. It is certainly necessary for the withdrawal agreement to ‘bridge the gap’ between the old EU regime and the new future relationship,[36] and to deal with the issues surrounding the acquired rights of individuals and companies which might, over time, be phased out. A ‘catalogue of dossiers would have to be developed’;[37] with due consideration of what can and should be included within the withdrawal agreement, and what is to be determined in other treaties.

In line with the approach adopted throughout this paper, it is argued that these issues should be addressed in the guidelines provided by the European Council, and, as far as possible, agreed with the withdrawing Member State before the decision to pull the Article 50 trigger is made. In the last section, I argue for a broad interpretation of the scope of the withdrawal agreement, so that the contours of the future relationship between the withdrawing State and the EU are known before the end of the notification period.

6. Can the time period be extended?

Article 50(3) provides that the Treaties shall cease to apply to the withdrawing State from the date of entry into force of the withdrawal agreement, or, failing that, two years after the notification ‘unless the European Council, in agreement with the State concerned, unanimously decides to extend this period’.

Thus, it is not clear, even at the date on which Article 50 is triggered, when withdrawal might occur, or indeed on which terms. One possibility, though this seems unlikely, is that the agreement relating to withdrawal is reached swiftly. In this case, the Treaties will cease to apply to the withdrawing State from the date on which the withdrawal agreement enters into force.

If it is not possible to reach a swift agreement, and as the two-year time period comes towards an end, the prospect of a withdrawal without a negotiated agreement will begin to loom large. This would mean exit from the EU without a withdrawal agreement, with no option but to fall back on the trading terms derived from membership of the World Trade Organisation.[38] Transitional arrangements would be handled unilaterally by each side. The view of Sir David Edward is that ‘the long term ghastliness of the legal complications is almost unimaginable.’[39]

It is in the best interests of all, in particular of individuals and companies with acquired rights in the UK and the remainder of the EU27, for exit without an agreed withdrawal deal to be avoided. There are, it seems to me, two ways in which this may be accomplished.

First, Article 50 expressly provides for the two year time period to be extended, but only on the basis of the unanimous agreement of all States. That agreement cannot be guaranteed; and at this stage it is impossible to speculate about the likely pressures within various Member States which may affect the decisions of their governments about whether to agree to an extension of the negotiations. Thus, it seems that this is possible, but politically very uncertain. In relation to the extension of the time period, there is also what I take to be a mischievous suggestion by O’Dell that the negotiated period could, with the agreement of all, be extended indefinitely, with the result that withdrawal cannot take place.[40]

Second, if, as argued in this paper, it is possible to revoke the Article 50 notification, it becomes possible for the withdrawing State to make a unilateral decision to avoid the prospect of a disorderly exit, and to remain within the EU. The ramifications of this are considered more fully in the second part of this post.

The author would like to thank Albert Sanchez-Graells, and the many other friends and colleagues with whom he has been discussing Article 50 since June 23.

[1] See http://www.bbc.co.uk/news/politics/eu_referendum/results.

[2] In this paper I do not engage with the literature on legitimacy; though it would be interesting to develop a more overtly theoretical approach. The core concern is with the social and normative acceptability of the withdrawal process, in both the UK and the EU.

[3] OJ C 169/1 [2003].

[4] See C Hillion, ‘Accession and Withdrawal in the Law of the European Union’ in A Arnull and D Chalmers (eds), The Oxford Handbook of European Union Law (OUP, 2015) 126 at 149. See also A Lazowski, ‘Withdrawal from the European Union and Alternatives to Membership’ (2012) 37 ELRev 523. Hillion references the scholarly scrutiny the provision has received at note 46.

[5] There is some discussion of Article 50 in Re Ratification of the Treaty of Lisbon [2010] 3 CMLR 13, before the German Constitutional Court at [305]-[306]; and in Re Ratification of the Lisbon Treaty [2010] 1 CMLR 42, before the Latvian Supreme Court. It was also referred to in the High Court in the UK in Shindler [2016] EWHC 957 (Admin).

[6] HM Government, ‘The Process for Withdrawing from the European Union’, Cm 9216, February 2016, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/503908/54538_EU_Series_No2_Accessible.pdf.

[7] House of Lords European Committee, 11th Report of Session 2015-16, ‘The Process of Withdrawing from the European Union’, May 2016, available at http://www.publications.parliament.uk/pa/ld201516/ldselect/ldeucom/138/138.pdf.

[8] European Parliament Briefing, ‘Article 50: Withdrawal of a Member State from the EU’, February 2016, available at http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf.

[9] House of Commons Briefing Paper Number 7551, ‘Brexit: How does the Article 50 process work?’, 30 June 2016; House of Lords Library Note, ‘Leaving the EU: Parliament’s Role in the Process’, 30 June 2016.

[10] See for example: A Renwick, ‘The Road to Brexit: 16 Things You Need to Know about the Process of Leaving the EU’, The Constitution Unit, available at https://constitution-unit.com/2016/06/24/the-road-to-brexit-16-things-you-need-to-know-about-the-process-of-leaving-the%E2%80%AFeu/#more-5134, N Barber, T Hickman and J King, ‘Pulling the Article 50 ‘trigger’: Parliament’s Indispensable Role’, UK Constitutional Law Association Blog, available at https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/, K Armstrong, ‘Push Me, Pull You, Whose Hand on the Article 50 trigger’, UK Constitutional Law Association Blog, available at: https://ukconstitutionallaw.org/2016/06/27/kenneth-armstrong-push-me-pull-you-whos-hand-on-the-article-50-trigger/, S Douglas-Scott, ‘Brexit, The Referendum and the UK Parliament: Some Questions about Sovereignty’, UK Constitutional Law Association Blog, available at https://ukconstitutionallaw.org/2016/06/28/sionaidh-douglas-scott-brexit-the-referendum-and-the-uk-parliament-some-questions-about-sovereignty/, E O’Dell, ‘Would it fly? A possible Article 50 route to a second referendum’, available at http://blogs.lse.ac.uk/politicsandpolicy/article-50-route-to-a-second-referendum/#Author, A Duff, ‘Everything you need to know about Article 50 (but were afraid to ask)’, available at http://verfassungsblog.de/brexit-article-50-duff/, A Georgopoulos, ‘’Brexit’, Article 50 and the Constitutional Significance of the UK Referendum’, available at http://www.ejiltalk.org/brexit-article-50-teu-and-the-constitutional-significance-of-the-uk-referendum/, ‘S Peers, ‘Article 50: Can the UK force the pace of Brexit’, The Conversation, available at https://theconversation.com/article-50-can-the-eu-force-the-pace-of-brexit-61626, P Syrpis, ‘Once the UK triggers Article 50 to start Brexit, can it turn back?’, The Conversation, available at https://theconversation.com/once-the-uk-triggers-article-50-to-start-brexit-can-it-turn-back-61727.

[11] Hillion, n4 above at 135.

[12] See G Conway, The Limits of Legal Reasoning and the European Court of Justice (2014, CUP).

[13] Hillion, n4 above at 150-51.

[14] See Case 6/64 Costa v ENEL [1964] ECR 585.

[15] See also Lazowski, n4 above at 525: ‘it is widely accepted that that lack of an exit clause does not preclude the possibility of withdrawal from an international organisation’. In relation to the EU, withdrawal has been contemplated at various times in various states; in particular in the UK, which held a referendum in 1975 on whether the UK should stay in the European Community (Common Market). In relation to the ‘idiosyncratic’ situation of Greenland, see F Harhoff, ‘Greenland’s Withdrawal from the European Communities’ (1983) 20 CMLRev 13.

[16] See also re Secession of Quebec [1998] 2 SC 217, before the Canadian Supreme Court.

[17] Hillion, n4 above at 149.

[18] See eg http://www.voteleavetakecontrol.org/a_framework_for_taking_back_control_and_establishing_a_new_uk_eu_deal_after_23_june

[19] See also Duff, n10 above.

[20] House of Lords European Committee Report, n7 above at [9].

[21] See eg: https://theconversation.com/article-50-can-the-eu-force-the-pace-of-brexit-61626 and http://www.theguardian.com/politics/2016/jun/25/eu-emergency-talks-brexit-berlin

[22] See European Union Referendum Act 2015; discussed in Douglas Scott, n9 above.

[23] See http://www.theguardian.com/politics/2016/jul/05/brexit-can-go-ahead-without-parliament-vote-article-50-government-lawyers-say.

[24] See eg: https://publiclawforeveryone.com/2016/06/24/brexit-legally-and-constitutionally-what-now/

[25] See Scottish Parliament European and External Relations Committee, SP Paper 978, 16 March 2016, http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Reports/EUS042016R02.pdf.

[26] See e.g. David Pannick in The Times, http://www.thetimes.co.uk/article/why-giving-notice-of-withdrawal-from-the-eu-requires-act-of-parliament-dz7s85dmw; and Barber, Hickman and King, n9 above.

[27] See e.g. AC Grayling, https://www.nchlondon.ac.uk/2016/07/01/professor-c-graylings-letter-650-mps-urging-parliament-not-support-motion-trigger-article-50-lisbon-treaty-1-july-2016/.

[28] See by analogy the case law relating to Article 4(2) TEU, discussed in A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 CMLRev 1471.

[29] The ‘EU side’ appears, publically at least, to be refusing to open informal negotiations with the UK until the decision to trigger Article 50 is made. See http://www.theguardian.com/politics/2016/jun/27/europe-leaders-crunch-talks-brexit-fallout.

[30] It is certainly possible to finesse any legal objections to the participation of the UK in the process of drawing up the European Council guidelines, notwithstanding the wording of Article 50(4). One can argue that the guidelines are a necessary precursor to the commencement of the withdrawal process; and that prior to the triggering of the Article 50, the UK remains a full member of the European Council.

[31] House of Lords European Committee Report, n7 above at [10].

[32] Barber, Hickman and King, n10 above. See also European Parliament Briefing, n8 above, which states that ‘most commentators’ argue that it is impossible, or at least doubtful from a legal point of view, to unilaterally revoke an Article 50 notification.

[33] See Duff, n10 above: ‘Within that two year period – for instance, following a British general election and change of government or, less likely, after a second referendum ‑ it would be perfectly possible for the UK to revoke its decision to quit. That Article 50 is silent on the matter of revocation does not mean that a change of direction would be illegal under EU law (as long as the CJEU were convinced that the switch was constitutional). The EU is well practised in the art of the stopped clock. Given the collateral damage done to the remaining EU by Brexit, a notification that London had changed its mind would be met with very great, if somewhat exasperated relief.’

[34] Hillion, n4 above at 140.

[35] Lazowski, n4 above at 529.

[36] House of Lords European Committee Report, n7 above at [25]. See also [31]: Coordination between the withdrawal treaty on the one hand and the future relations treaty on the other would be important. The UK’s aim would be to have a smooth transition between the past in the EU and the future in the new arrangement.

[37] Ibid at 529-33.

[38] Note however that even this option may not be straightforward, and will require agreement within the WTO. See http://www.ft.com/cms/s/0/745d0ea2-222d-11e6-9d4d-c11776a5124d.html#axzz4Dd5Y4Uki.

[39] House of Lords European Committee Report, n7 above at [49].

[40] See http://blogs.lse.ac.uk/politicsandpolicy/article-50-route-to-a-second-referendum/